Town of Porter v. Chem-Trol Pollution Services, Inc., CHEM-TROL
| Decision Date | 20 January 1978 |
| Docket Number | CHEM-TROL |
| Citation | 401 N.Y.S.2d 646,60 A.D.2d 987 |
| Parties | TOWN OF PORTER, Respondent, v.POLLUTION SERVICES, INC., Appellant, and Peter A. A. Berle, as Commissioner of Environmental Conservation of the State of New York, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Louis J. Lefkowitz, Atty. Gen., Albany by Murray Susswein, Asst. Atty. Gen., Albany, for appellant Berle.
Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo by H. Kenneth Schroeder, Jr., Buffalo, for appellant Chem-Trol.
Orr, Brydges & Orr, Niagara Falls by George S. Tsakos, Buffalo, for respondent.
Before MARSH, P. J., and MOULE, DILLON, HANCOCK and WITMER, JJ.
Defendant Chem-Trol Pollution Services, Inc. (Chem-Trol) is engaged in the processing, treatment, recovery and disposal of industrial and hazardous wastes at a facility owned and operated by it and situated on approximately 900 acres in the Towns of Porter and Lewiston. During the period 1972-1976 Chem-Trol, in connection with its waste treatment and disposal operations, constructed six secure landfills on its premises, of which five have been filled and capped. It is presently utilizing Secure Landfill No. 6 which, at its present rate of use, will be filled and capped in February or March, 1978. As a result of authorization granted to it by the Department of Environmental Conservation, Chem-Trol began preliminary excavations for Secure Landfill No. 7 in the summer of 1977.
Plaintiff commenced this action for a permanent injunction by service of a summons and complaint, together with an order to show cause on its motion for a preliminary injunction. In its complaint plaintiff alleged that Chem-Trol's excavation for Secure Landfill No. 7 is in violation of certain provisions of its zoning ordinance which require the obtaining of a Special Permit for "major excavating, grading or filling" and that Chem-Trol has not applied for such permit. In its answer Chem-Trol set forth four affirmative defenses. The first was that the Department of Environmental Conservation, pursuant to Title 5 (now Title 7) of article 27 of the Environmental Conservation Law, has undertaken detailed regulation of its facilities and, since the provisions of the zoning ordinance which plaintiff is attempting to apply to the excavation of Secure Landfill No. 7 do not meet the minimum requirements of the State law and the regulations promulgated thereunder, such local provisions are preempted and otherwise invalid. The second and third affirmative defenses were that the provisions of plaintiff's zoning ordinance are invalid since they exceed, or are not within, the powers granted to it under the Town Law of the State of New York and the fourth affirmative defense set forth a claim of estoppel against plaintiff. Chem-Trol and defendant Peter A. A. Berle, Commissioner of Environmental Conservation of the State of New York, appeal from the order of Special Term granting plaintiff's motion for a preliminary...
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...favors his position (see Gambar Enterprises v. Kelly Servs., 69 A.D.2d 297, 306, 418 N.Y.S.2d 818; Town of Porter v. Chem-Trol Pollution Servs., 60 A.D.2d 987, 988, 401 N.Y.S.2d 646; Tucker v. Toia, 54 A.D.2d 322, 324, 388 N.Y.S.2d 475). We are mindful of the rules that in reviewing an orde......
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Gambar Enterprises, Inc. v. Kelly Services, Inc.
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